Protecting the Right to Confront

An op-ed in today's NY Times frets about two cases before the Supreme Court that ask whether a 911 call should be admitted into evidence to prove a criminal charge when the caller doesn't testify as a witness. The writers worry that domestic abusers go unpunished when their victims refuse to testify, and argue that 911 calls are the only evidence in those cases that can "bring domestic abusers to justice."

The unstated assumption in the op-ed, of course, is that 911 callers are always victims who call to report an actual crime. This is nonsense. Some 911 calls are pranks. Some 911 calls are made by unharmed but bitter individuals who want to make trouble for spouses or roommates. Some 911 calls are made in anger, and the accusations that are voiced are exaggerated. Some 911 calls are made by people who are drunk or drug-influenced or mentally ill. Assuming, as does the op-ed, that 911 calls are inherently "reliable evidence" is absurd.

A 911 call can't be cross-examined. If the person who made the call doesn't testify, the veracity of any accusations made during the call can't be explored via cross-examination. The question before the Court is whether hearsay statements made during a 911 call that aren't subject to cross-examination, because the prosecution doesn't put the caller on the witness stand, violate the Confrontation Clause. Cross-examination might expose the unreliability of a 911 call, and the value of testing an accusation through cross-examination lies at the heart of the Confrontation Clause.

Adopting the double-speak that has become fashionable in the 21st Century, the op-ed writers call this "evidence-based prosecution." It's more like "accusation-based prosecution." Having the alleged victim testify, subject to cross-examination, gives the jury evidence upon which to base a verdict.

The op-ed piece ignores the accused's right to a fair trial. That isn't surprising. If the assumption is that every person who alleges abuse has actually been abused, there's no need for a trial at all. The accusation suffices; guilt should be presumed.

The op-ed also assumes that a "victim" who refuses to cooperate has been intimidated by an abuser. This is surely true in some instances, but in others the "victims" don't cooperate because they aren't really victims. They often don't appreciate being told by "victims' rights advocates" that they are victims, whether they know it or not. Some accusers don't want to testify because they are reluctant to admit under oath that they lied to the police. The only way to sort out the truth is a fair trial, not a sham trial that depends solely upon statements made in the heat of the moment that haven't been subject to cross-examination.

Prosecutors always have the option of issuing a subpoena to a recalcitrant witness. If the witness don't say what a prosecutor wants the witness to say, or if the witness simply refuses to show up, that's life. It isn't a reason to argue for something less than a fair trial.

Victims' rights advocates are well-meaning (sometimes), but they too often proceed from the assumption that every abuse accusation is worthy of belief and every accused is an abuser who deserves to be convicted. Concepts like "fair trial" and "the right to confront" are lost in the desire to "protect victims." But whether an accuser is really a "victim" is what criminal trials decide. Sympathy for the plight of battered spouses is an insufficient reason to disregard constitutional rights that protect the innocent from unwarranted convictions.

I don't know exactly how I feel about this. I know people will continue to live with victimization if this changes. Crawford also had a huge impact on elder abuse cases, where the elderly victim died before the case could get to trial.
However, in most cases where a victim recants, there are other factors present and not just a lone recording. Photographs of injuries, officer testimony about the scene and statements made by involved parties at the scene or in interviews subsequent to the report.
I think there needs to be a balance, and perhaps judicial review of each request based on some set of criteria rather than a blanket prohibition or allowance of such evidence. Let the judge listen to the recording in light of the rest of the case and make a case by case determination of the recording's relevance and value.
If the judge allows the recording, the defense can always put the caller on the stand to rebut it.

"If the judge allows the recording, the defense can always put the caller on the stand to rebut it."
Let the prosecutor put the caller on the stand, and if the caller recants, then the prosecutor can use the recording to impeach. Your hypothetical shifts the burden of proof to the defense; last time I checked, the burden of proof was on the prosecution.

Nicole,
Yes it does, but in many cases the defense has the burden in certain pre-trial circumstances. To traverse a warrant is one example. If a judge allows it, then the burden can legally shift to the defense to impeach. Impeaching your own witness could further their victimization.
I don't necessarily disagree with you, I'm just not sure it's what best for the victims. That's about as liberal as I can muster.

Interesting issue, from a law geek perspective. Here's a good summary of the issues for those who want to take a look.
Short version: The whole problem is that the victim-witness was not available to give live testimony in either case, and thus could not be cross-examined about previous out-of-court statements. The evidence rules allow certain types of out-of-court statements to be introduced into evidence. The Sixth Amendment, however, gives defendants a constitutional right to confront their accusers in criminal cases, and this constitutional right must somehow be reconciled with these evidence rules.

Every witness can lie. And, every witness can lie even faced with cross-examination. Indeed, as a general rule, I think it is fair to believe that statements under oath on a witness stand, whether or not subject to cross examination, are usually less reliable evidence than statements not under oath in a situation of importance. The former are generally calculated to have a particular legal effect, the later have some other purpose.
The idea behind the heresay rule, which is similar to, but not precisely the same (after Crawford, at least) as the confrontation clause, is as much to force testimony from actual witnesses as it is to force revealing cross examination, in light of the phenomena of distortion of facts familiar to everyone from the game "telephone."
A 9-1-1 call recording eliminates this part of the problem. You are hearing directly from the witness what the witness has to say. There is no room for words to be fudged in translation, or even for pauses and tone of voice which inform the credibility of a statement, to be omitted. There is a bias in 9-1-1 calls, but it is typically a bias towards saying things that will bring a police reaction. And, the knowledge that a recording will be made leaves a would be fraud perpetrator in the uncomfortable position of knowing that the false statement will be available to prosecute the caller with should the statement turn out to be baseless in a manner that can be proven. (For example, a claim a physical injuries or damage to property that didn't happen at all.)
A 9-1-1 call also has the virtue of being much closer to the alleged event than a trial. Memory is a tricky thing. What someone recalls and states on cross-examination, thinking that they are telling the truth, is often a mentally digested version of what really happened that may be at odds with the truth. This is particularly important from a reasonable doubt perspective. One of the most notable differences between later testimony and an immediate retelling, is that the later testimony rarely contains the same uncertainties that were present in the original.
And, from a practical perspective, 9-1-1 calls can generally be obtained, well in advance of trial, allowing a defense to both pin down a case based on it and to take time to formulate impeachment of it if it is questioned, which is a luxury often not afforded to an attorney cross-examining a witness after a direct exam. An element of the confrontation clause more basic than the heresay piece of Crawford, is that the defendant, unlike those at Guantanamo, know what evidence will be marshalled against him, so that it may be discussed and contested at all. The biggest part of the confrontation clause is a ban on secret evidence. Here, the advanced notice offered by a recording is better than the protections one has from adverse witness testimony which may be a surprise at trial.
Cross-examination can be useful in disarming a witness who seeks to be clever in legalistic wording on direct (and for all their faults, 9-1-1 calls are rarely clever in their fine legalistic wording), or witnesses who are muddled in their understandings and blinded by their own biases but basically honest. It is, however, a useless tool (or more correctly, a tool no more useful than argument unaided by the prop of the witness) against someone who is fundamentally a liar.
In these respects a 9-1-1 call recording is far superior to the usual kind of heresay, the police report. A police report is not a verbatim statement from the person who claims to have seen the events happen, is written up usually a longer time after the events in question, and is more directed towards trial than getting help, than a 9-1-1 call. Trial by affidavit, which is at the core of the confrontation clause and heresay prohibitions isn't advanced by allowing 9-1-1 calls.
One can also suitably make a distinction, if not under the constitution, in practice, regarding why a witness is unavailable. Many forms of unavailability are inherently not strategic (e.g. the witness dies or is rendered incoherent from events suffered in the crime, or old age, or witness intimidation shown in court and traceable to the defendant), and those situations don't pose the troubling concerns about government misconduct that lie behind the Confrontation clause. It is when witness unavailability is not due to one of these reasons that suspicion is called for.
A 9-1-1 tape isn't the same as a surveilance video. Not all evidence can meet that high standard. But, it often lacks the faults that make other kinds of testimony not subject to cross examination objectionable.

The only way the Court can find for the prosecution in these cases is to nullify the Confrontation Clause, or invent an exception to it under which the Confrontation Clause can be ignored if it's more convenient to ignore it.
I don't want the Court to take such an approach to specific rights guaranteed by the Constitution. Do you?

Here's the money shot from Scalia's opinion in Crawford:
" Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."
Our local victiim's advocate was enamored with what she called a "victimless prosecution," putting the cop on the stand to testify as to what the victim told him under an "excited utterance" or "res gestae" exception to the hearsay rules.
Of course, no cross examination was possible under these circumstances, which troubled prosecutors not at all. They saw the "hearsay exception" as an exception not to the Rules of Evidence, but to the Sixth Amendment as well. I'm no fan of Scalia, but his opinion in Crawford is scholarly, intellectually honest, and considering the source, surprising in the extreme.
If he ate a live baby on national TV, I'd say, "Yeah, but Crawford...."